{"id":127814,"date":"1961-04-24T00:00:00","date_gmt":"1961-04-23T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/guru-datta-sharma-vs-state-of-bihar-on-24-april-1961"},"modified":"2016-09-23T00:41:04","modified_gmt":"2016-09-22T19:11:04","slug":"guru-datta-sharma-vs-state-of-bihar-on-24-april-1961","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/guru-datta-sharma-vs-state-of-bihar-on-24-april-1961","title":{"rendered":"Guru Datta Sharma vs State Of Bihar on 24 April, 1961"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Guru Datta Sharma vs State Of Bihar on 24 April, 1961<\/div>\n
Equivalent citations: 1961 AIR 1684, \t\t 1962 SCR (2) 292<\/div>\n
Author: N R Ayyangar<\/div>\n
Bench: Sinha, Bhuvneshwar P.(Cj), Sarkar, A.K., Gupta, K.C. Das, Ayyangar, N. Rajagopala, Mudholkar, J.R.<\/div>\n
           PETITIONER:\nGURU DATTA SHARMA\n\n\tVs.\n\nRESPONDENT:\nSTATE OF BIHAR\n\nDATE OF JUDGMENT:\n24\/04\/1961\n\nBENCH:\nAYYANGAR, N. RAJAGOPALA\nBENCH:\nAYYANGAR, N. RAJAGOPALA\nSINHA, BHUVNESHWAR P.(CJ)\nSARKAR, A.K.\nGUPTA, K.C. DAS\nMUDHOLKAR, J.R.\n\nCITATION:\n 1961 AIR 1684\t\t  1962 SCR  (2) 292\n CITATOR INFO :\n F\t    1962 SC1687\t (8)\n RF\t    1970 SC 470\t (30,31)\n\n\nACT:\nForest--Protection--Validity  of   enactment--Constitutional\nvalidity--Legislative\tcompetence--Notification  by   State\nGovernment--Validity Bihar Private Forests Act, 1946  (Bihar\n3  of  1946),  ss.14, 21-- Bihar Private  Forest  Act,\t1947\n(Bihar\t9 of 1948), ss.14,21--Ch.III--Bihar Private  Forests\n(Validating)  Act, 1949 (Bihar 12 of 1949),s.  2--Government\nof   India  Act,  1935\t(25   &\t 26  Geo.  5  Ch.  42),\t  s.\n299(2)--Constitution of India, Arts. 19(1)(f), 31 (2).\n\n\n\nHEADNOTE:\nIn 1946 the appellant was granted a right to cut and  remove\nbamboos\t and certain other timber to be found in a  specific\narea  of the forest Village of Jun by certain persons  known\nas  Manjhis who held under a mokarari lease granted  by\t the\nRaja  of  Ranka\t and whose names had  been  entered  in\t the\nrevenue records.  Meanwhile, the Bihar Private Forests\tAct,\n1046,  was  enacted and it came into force on  February\t 25,\n1946.  This Act was repealed and reenacted by Bihar Act 9 Of\n1948.  On October 14, 1946, the Governor of Bihar  issued  a\nnotification  under  ss.  14 and 21  of\t the  Bihar  Private\nForests\t Act,  1946,  declaring\t the  forest  of  Jun  as  a\nprotected  forest.   Though  in the  Schedule  to  the\tsaid\nnotification,  against\tthe  column  headed  \"name  of\t the\nproprietor\" the name of Raja of Ranka was entered, a copy of\nthe   notification  was\t however  served  on  the   Manjhis.\nImmediately  on the issue of the notification the  officials\nof  the\t Government of Bihar prevented\tthe  appellant\tfrom\nworking the forest any further.\nThe  appellant\tchallenged the validity of  the\t proceedings\nunder  the Act by filing a suit.  The trial court held\tthat\nthe  Act was valid but decreed the suit on the\tground\tthat\nthe  notification issued under s. 14 was invalid,  primarily\nfor the reason that the name of the Manjhis as landlord\t had\nnot been mentioned in it.  The High Court on appeal reversed\nthe decree and dismissed the suit, holding that the omission\nof  the\t name  of the Manjhis in the  notification  did\t not\nrender\tthe  same  invalid  and\t that  even  otherwise\t the\nproceedings under Ch.  III of the Act had been validated  by\nS. 2 of Bihar Act 12 Of 1949.\nHeld,  that the Bihar Private Forests Acts of 1946 and\t1948\nwere validly enacted and were within the Legislative  compe-\ntence  of  the Province under the Government of\t India\tAct,\n1935, and were not otherwise obnoxious to its provisions.\nBihar Act 3 Of 1946 was an Act supplementary to, or rather a\ncomplement of the Indian Forests Act of 1927 and was clearly\n293\ncovered\t by  the Entry 'Forests' in item  22  of  Provincial\nLegislative  List  under  which\t the  Province\tcould  enact\nlegislation  not merely generally in relation  to  \"Forests\"\nbut  also to enable the Government to assume management\t and\ncontrol of forests belonging to private proprietors.  Such a\nlegislation  involved no violation of the guarantee  against\n\"acquisition by the State without compensation\" contained in\ns.  299(2) of the Government of India Act, 1935.   Property,\nas  a legal concept, was the sum of a bundle of\t rights\t and\nthe  imposition of a compulsory Governmental agency for\t the\npurpose\t of managing the forest with a liability imposed  to\naccount\t to  the proprietor for the income derived  as\tlaid\ndown by the statute was not an \"acquisition\" of the property\nitself\twithin\tS. 299(2) of the Government  of\t India\tAct,\n1935.\tNor  does S. 299(5) affect the matter.\t The  rights\nreferred  to  in it are derivative  rights,  like  interests\ncarved\tby  an\towner-a lessee, mortgagee etc.\tand  not  an\nincident of a property right.\nHeld, further, that the correct specification of the name of\nthe  landlord  was  not a legal\t pre-requisite\tof  a  valid\nnotification under s. 14 Of the Bihar Act 3 Of 1946 but\t the\nemphasis was on specification of the land and not so much on\nthe  owner or the person interested in it.  The\t proceedings\ntaken  under Ch.  III of the Act including the\tnotification\nissued\tunder s. 14 Of the Act were valid and in  accordance\nwith  the  law and the validity of the\tservice\t of  notices\nrequired  by s. 14 or other provisions of the Act could\t not\nbe challenged in view of the provisions of S.\t  2  Of\t the\nBihar Private Forests (Validating) Act, 1949.\nHeld, also, that the legislation under which the appellant's\nrights\t were  extinguished,  subject  to  his\t claim\t for\ncompensation,  was  a valid law which took effect  in  1946,\nlong  before  the  Constitution\t came  into  force  and\t the\nappellant  had therefore no rights which could\tsurvive\t the\nConstitution so as to enable him to invoke the protection of\nPart III thereof.\nM.D. Sir Kameshway Singh v. State of Bihar, [1950] I.L.R. 29\nPat.  790  and\tDwarkadas Shrinivas of\tBombay\tv.  Sholapur\nSpinning   &   Weaving\t Co.,  Ltd.<\/a>   [1954]   S.C.R.\t674,\ndistinguished.\nSm.   Khemi Mahatani v. Charan Napit, A.I.R. 1953 Pat.\t365,\nK.B.N.\t Singh\t v.  State,  (1956)  I.L.R.  36\t  Pat.\t 69,\nAdministrator,\tLahore\tMunicipality v.\t Daulat\t Ram  Kapur,\n[1942] F.C.R. 31, State of West Bengal v. Subodh Gopal Bose,<\/a>\n[1954] S.C.R. 587, Bhikaji Narain Dhakras v. State of Madhya\nPradesh,<\/a> [1955] 2 S.C.R. 589, Slattery v. Naylor, (1888)  13\nApp.   Cas. 446 and Shanti Sarup v. Union of  India,  A.I.R.<\/a>\n1955 S.C. 624, referred to.\nBelfast\t Corporation  v. O. D. Cars Ltd., [1960]  A.C.\t490,\napplied.\n\n\n\nJUDGMENT:\n<\/pre>\n
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 41 of 1960.\n<\/p>\n
38<\/span>
\n294<\/span><\/p>\n
Appeal from the judgment and decree dated April 28,1958,  of
\nthe  Patna High Court in appeal from Original Decree No.  70
\nof 1953.\n<\/p>\n
L.   K. Jha, A. K. Jha, S. S. Shukla, E. Udayarathnam and K.
\nK. Sinha, for the appellant.\n<\/p>\n
Lal  Narayan Sinha, Bajrang Sahay and S. P. Varma,  for\t the
\nrespondent No. 1.\n<\/p>\n
1961.  April 24.  The Judgment of the Court was delivered by
\nAYYANGAR,  J.-This appeal comes before us on  a\t certificate
\ngranted\t by  High Court of Patna under Art.  133(1)  of\t the
\nConstitution.\n<\/p>\n
The  appellant had filed a suit against the State  of  Bihar
\nbefore\tthe Subordinate Judge, Daltonganj and had  succeeded
\nin obtaining a decree in his favour the details of which  we
\nshall  presently narrate.  The State preferred an appeal  to
\nthe  High  Court and by the judgment now  under\t appeal\t the
\nlearned Judges of the High Court had allowed the appeal\t and
\ndismissed  the suit with costs, and the plaintiff  has\tcome
\nupon appeal to this court.\n<\/p>\n
The facts giving rise to the suit and the appeal may now  be
\nbriefly\t stated.   The\tvillage of Jun in  the\tdistrict  of
\nPalamau\t in the State of Bihar was within the estate of\t the
\nRaja of Ranka.\tThis proprietor had granted a mokarari lease
\nof  the village which consisted mostly of forest  lands,  in
\nfavour of certain persons who have been referred to in these
\nproceedings  as\t the  Manjhis.\tThe Manjhis  in\t their\tturn
\nentered\t into a registered agreement on February  23,  1946,
\nwith  Gurudutt Sharma-the appellant before us,\twhereby\t the
\nlatter was, in consideration of the payment of a sum of\t Rs.
\n6,000,\tgranted\t the  right to cut and\tremove\tbamboos\t and
\ncertain other timber to be found in a specified area of this
\nforest-village.\t This right the appellant was to have for  a
\nperiod\tof  8 years ending on March 1, 1954.  By  a  further
\ndeed   executed\t on  March  15,\t 1946,\twhich  was   however
\nunregistered, the Manjhis granted to the appellant the right
\nto pluck, or collect and carry away bidi leaves in the\tsame
\nforest area for
\n\t\t\t    295<\/span>
\na  period  of  9  years ending March 1,\t 1955,\tfor  a\tcon-
\nsideration of Rs. 200.\tIt is the case of the appellant that
\nimmediately  after  these deeds were  executed,\t he  started
\ncutting\t the  trees  and  otherwise  exercising\t the  rights
\ngranted to him under them.\n<\/p>\n
Meanwhile  the\tGovernor of Bihar who had,  by\tproclamation
\nissued\tby him under s. 93 of the Government of\t India\tAct,
\n1935, assumed to himself the powers vested in the Provincial
\nLegislature,  enacted in exercise of the powers so  assumed,
\nthe  Bihar Private Forests Act, 1946 (Bihar 3 of 1946).\t  It
\nis the validity of this enactment and the interpretation  of
\nits  provisions and. of the similar provisions in the  Bihar
\nPrivate Forests Act, 1947 (Bihar 9 of 1948), by which it was
\nrepealed  and  reenacted,  that form  the  main\t subject  of
\ncontroversy  in this appeal.  It is therefore  necessary  to
\nset  out  certain of the relevant provisions  and  also\t the
\naction\t taken\tunder  them  in\t order\tto  appreciate\t the
\ncontentions  raised  by learned Counsel for  the  appellant.
\nThe  Governor’s\t Act of 1946 extended to the  whole  of\t the
\nProvince of Bihar and came into force on February 25,  1946,
\nwhen  having received the assent of the Governor-General  it
\nwas  first  published  in the  Bihar  Gazette.\t There\twere
\ncertain\t forests which were excepted from the  operation  of
\nthis  Act  by  its second section, but the  forests  in\t the
\nvillage of Jun with which this appeal is concerned were\t not
\namong\tthem.\tThe  Act  contained  the  definition  of   a
\n“landlord” as meaning ‘the owner of the estate or tenure  in
\nwhich a forest is comprised who is entitled to exercise\t any
\nrights\tin  the forests’.  It is obvious  that\tthe  Manjhis
\nwould  be “landlords” within this definition.  Section 4  of
\nthis Act enacted:\n<\/p>\n
\t      “The  rights  of the  landlord  and……\t the
\n\t      rights of any other person to cut, collect  or
\n\t      remove  trees, timber or other forest  produce
\n\t      in  or from…… in any forest shall  not  be
\n\t      exercised\t in contravention of the  provisions
\n\t      made in or under this Act.”\n<\/p><\/blockquote>\n
There were other restrictions oil the rights of landlords or
\npersons\t claiming  through  them  but  these  are  not\tvery
\nmaterial  for  the  point required to  be  decided  in\tthis
\nappeal.\t Chapter III of this enactment which
\n296<\/span>
\ncomprised  ss.\t13  to\t30  dealt  with\t “private  protected
\nforests”  which\t were  defined\tin s.  3(10)  as  ‘a  forest
\nspecified  in a notification issued under sub-s. (1)  of  s.
\n29’.   Section\t13  with  which\t this  Chapter\topens\tmade
\nprovision for the Provincial Government, “if satisfied\tthat
\nit  was\t necessary  in\tthe public  interest  to  apply\t the
\nprovisions  of\tthis  Chapter  to  any\tprivate\t forest”  to
\nconstitute such forest “a private protected forest.” Section
\n14  required the Government, when proposing to constitute  a
\nprivate\t forest as a “private protected forest” “to issue  a
\nnotification  (a  copy\tof  which shall\t be  served  on\t the
\nlandlord  in  the  prescribed  manner)\t(a)  declaring\t its
\nproposal,  (b)\tspecifying the situation and limits  of\t the
\nforests\t and  stating  that landlords  whose  interests\t are
\nlikely\tto  be affected by the constitution of\tthe  private
\nprotected  forests  to\tstate their  objections\t in  writing
\nagainst\t the proposal.” Section 15 prescribed the  procedure
\nfor hearing the objections which might be presented under s.
\n14  and after the disposal of the objections a\tnotification
\nmight\tissue  declaring  “that\t it  has  been\tdecided\t  to
\nconstitute”  a\tdemarcated  area  as  “a  private  protected
\nforest”\t and for other consequential matters  including\t the
\ndetermination  of the existence and nature of  rights  other
\nthan those of the landlords in or over such forests.   After
\nthe  issue  of\tthe notification under\ts.  15,\t the  Forest
\nSettlement  Officer  was  required by s.  16  to  publish  a
\nproclamation  in  the  village in the  neighborhood  of\t the
\nforest requiring persons claiming rights other than those of
\na  landlord, to appear before him and state the\t particulars
\nthereof\t and  the compensation which they  claimed  for\t the
\ninfringement of their rights.  Sections 17 and 18 dealt with
\nthe  enquiry by the Forest Settlement Officer in respect  of
\nthese  objections  and his powers in doing so.\t Section  19
\nmade  provision for the extinction of the rights and  claims
\nwhich  had not been preferred in response to a\tnotification
\nunder  s. 16 unless the officer was satisfied that the\tsame
\nwas not made for sufficient cause.  Section 29 enacted:\n<\/p>\n
\t      “29.  (1)\t When  the  following  events\thave
\n\t      occurred,
\n\t      namely:-\n<\/p><\/blockquote>\n
\t      (a)   the\t period fixed under section  16\t for
\n\t      preferring
\n\t\t\t\t   297<\/span>
\n\t      claims  has elapsed, and all claims,  if\tany,
\n\t      made  under  sections  16\t and  22  have\tbeen
\n\t      disposed of by the Forest Settlement  Officer;
\n\t      and\n<\/p><\/blockquote>\n
\t      (b)   if\tany such claims have been made,\t the
\n\t      period  limited  by section 26  for  appealing
\n\t      from  the\t orders passed on  such\t claims\t has
\n\t      elapsed,\tand all appeals (if  any)  presented
\n\t      within  such period have been disposed  of  by
\n\t      the   appellate\tofficer,   the\t  Provincial
\n\t      Government shall publish a notification in the
\n\t      official\t Gazette,   specifying\t  definitely
\n\t      according\t  to  boundary\tmarks\terected\t  or
\n\t      otherwise,  the limits of the forest which  is
\n\t      to be constituted a private protected  forest,
\n\t      and  declaring  the  same\t to  be\t a   private
\n\t      protected\t forest\t from a date  fixed  by\t the
\n\t      notification, and from the date so fixed\tsuch
\n\t      forest  shall  be\t deemed\t to  be\t a   private
\n\t      protected forest:\n<\/p><\/blockquote>\n
\t      Provided that, if in the case of any forest in
\n\t      respect of which a notification under  section
\n\t      14  has  issued,\tthe  Provincial\t  Government
\n\t      considers\t that the enquiries,  procedure\t and
\n\t      appeals  referred\t to  in\t this  Chapter\twill
\n\t      occupy such length of time as in the  meantime
\n\t      to  endanger the conservation of\tthe  forest,
\n\t      the  Provincial  Government may,\tpending\t the
\n\t      completion  of the said enquiries,  procedures
\n\t      and  appeals,  declare  such forest  to  be  a
\n\t      private  protected forest, but not, except  as
\n\t      provided\tin  sections  20 and 21,  so  as  to
\n\t      abridge or affect any existing rights.
\n\t      (2)   Any\t declaration made in respect of\t any
\n\t      forest by the Provincial Government under\t the
\n\t      proviso to sub-section (1) shall cease to have
\n\t      effect from the date of any final order passed
\n\t      under  section 15 directing that the  proposal
\n\t      to constitute such forest a private  protected
\n\t      forest  shall  be\t dropped, or  of  any  order
\n\t      passed under sub-section (1).”\n<\/p><\/blockquote>\n
But pending this notification by which “a private  protected
\nforest”\t was constituted there were provisions\tfor  keeping
\nthings in status-quo and for the extinguishment of rights by
\npayment of compensation of the interests of persons who were
\nnot  landlords.\t  Section  20 imposed  a  ban  on  landlords
\nentering into
\n298<\/span>
\ncontracts with any other person conferring on the latter the
\nright  to  cut,\t collect or remove trees,  timber  or  other
\nforest\tproduce after the issue of a notification  under  s.\n<\/p>\n
14.  Having thus dealt with the landlord, s. 21 proceeded to
\nenact  a similar ban to have effect between the date of\t the
\nnotification  under s. 14 and the formal constitution of  “a
\nprivate\t protected  forest” by a notification  under  s.  29
\nagainst the cutting, collection or removal of trees by every
\nperson including the landlord as well as any person claiming
\nrights\tunder him.  Section 22 laid down the  procedure\t for
\ndealing\t with  claims  of  persons  who\t had  entered\tinto
\ncontracts with landlords whereby they had obtained the right
\nto  cut,  collect and remove trees, timber or  other  forest
\nproduce\t etc.\tIt also made provision for  the\t payment  of
\ncompensation  to such contractors.  Sections 23 to  28\tmade
\nprovision  for\tmiscellaneous  matters to which\t it  is\t not
\nnecessary to refer.\n<\/p>\n
There are other provisions which are material for the points
\nraised in this appeal but to these we shall
\nadvert later.\n<\/p>\n
To  resume  the\t narration of facts,  there  was  issued  on
\nOctober\t 14, 1946 a notification under ss. 14 and  21  under
\nBihar Act III of 1946 of which the operative words were:\n<\/p>\n
\t      “In exercise of the powers conferred by s.  14
\n\t      of  the  said Act the Governor is\t pleased  to
\n\t      declare his intention of constituting the said
\n\t      forest  (described in the 1st Schedule  hereto
\n\t      annexed) a private protected forest and direct
\n\t      that  any landlord whose interests are  likely
\n\t      to  be affected by the said  declaration\tmay,
\n\t      within 3 months from the date of this  notifi-
\n\t      cation,  present\tto the Deputy  Collector  of
\n\t      Palamau an application in writing stating\t his
\n\t      objection to the said forest being constituted
\n\t      a private protected forest.”\n<\/p><\/blockquote>\n
The notification contained a further paragraph containing  a
\ndirection purporting to be by virtue of the power  contained
\nin s. 21 “to prohibit every person from cutting,  collecting
\nor  removing  any tree or class of trees  from\tthe  forests
\nuntil the publication of the notification under s. 29 of the
\nAct.” In the Schedule
\n\t\t\t    299<\/span>
\nannexed,  village  Jun\twas included  with  details  of\t its
\nlocation.    Against   the  column  headed  “Name   of\t the
\nproprietor” was entered the Raja of Ranka though, as  stated
\nalready,  the  rights  over the forest\thad  passed  to\t the
\nManjhis whose name had been entered in the revenue  records.
\nIt  is stated that until October 21, 1946 no rules had\tbeen
\nframed\tunder the Act prescribing the form and\tcontents  of
\nthe notification and of the procedure to be followed in\t the
\nissue of the notification as well as for the conduct of\t the
\nsubsequent proceedings.\n<\/p>\n
Immediately on the issue of this notification the  officials
\nof the respondent-State prevented the appellant from working
\nthe forest any further.\n<\/p>\n
The appellant at first took proceedings on the basis of\t his
\nrights\tunder the Act.\tMeanwhile as the life of  the  Bihar
\nAct  III  of 1946 was limited by the terms of s. 93  of\t the
\nGovernment  of\tIndia  Act, 1935,  the\tLegislature  of\t the
\nProvince  of  Bihar enacted the Bihar Private  Forests\tAct,
\n1948  (Act  IX\tof  1948),  repealing  and  reenacting\t the
\nGovernor’s Act.\t This enactment came into force on March  3,
\n1948  and its terms, subject to immaterial variations,\twere
\nidentical  with those contained in the Governor’s Act  which
\nit   replaced.\tThe  proceedings  taken\t by  the   appellant
\ncontinued even after Act IX of 1948 came into force.  But it
\nis  not necessary to refer to the steps taken by the  appel-
\nlant  to  assert certain rights and  prefer  certain  claims
\nunder  this  enactment, because they either failed  or\twere
\nwithdrawn at a later stage and nothing turns on them.
\nHaving\tfailed\tin  these proceedings  under  the  Act,\t the
\nappellant filed the suit which has given rise to the present
\nappeal T. S. 1 of 1952 in the Court of the Subordinate Judge
\nof  Daltonganj impleading the State of Bihar and one  A.  R.
\nChaudhuri  to whom the right to cut and collect\t bamboo\t and
\ntimber\tin a portion of the area covered by the\t appellant’s
\ncontract was granted by the Government, as the second defen-
\ndant.  The plaint set out the various proceedings which\t the
\nplaintiff had taken under the Act, but the grounds on  which
\nhe sought the reliefs claimed were
\n300<\/span>
\nrested\ton:  (1)  The  Forest Acts of  1946  and  1948\twere
\nunconstitutional  and void as being in contravention of\t the
\nprovisions  of the Government of India Act, 1935.  (2)\tThat
\neven  if  valid when originally\t enacted,  their  provisions
\nviolated  the fundamental rights guaranteed by Part  III  of
\nthe Constitution and could not therefore be operative or  be
\nenforced  after\t January 26, 1950. (3)\tThe  proceedings  by
\nwhich  the  suit-forest was declared  “a  private  protected
\nforest” were illegal and invalid principally for the reasons
\nthat (a) the notification under s. 14 did not conform to the
\nrequirements of the statute, (b) the notices required to  be
\nserved\ton the landlord under the Act were not\tserved,\t and\n<\/p>\n
(c)  the  notifications were not properly published  in\t the
\nvillage as required by the Act.\n<\/p>\n
Based  on  these grounds, the reliefs sought in\t the  plaint
\nwere  set  out in para. 17 and of these\t the  material\tones
\nwere:  (1) a declaration that the plaintiff had a  right  to
\nwork  the  forests by cutting and carrying away\t the  trees,
\ntimber etc. and the bidi leaves which he was entitled to  do
\nunder the deeds dated February 23, 1946 and March 15,  1946,
\nexecuted  by  the Manjhis in his favour\t unaffected  by\t the
\nBihar  Private Forests Act, the validity of the\t proceedings
\nunder which was impugned, (2) a decree for Rs. 55,000  being
\nthe estimated damages suffered by the plaintiff by reason of
\nthe  wrongful  acts of the Government,\t(3)  restoration  to
\npossession  of the forest lands included in the\t two  deeds,
\nand (4) for mesne profits.\n<\/p>\n
The learned Subordinate Judge who tried the suit, though  he
\nheld the Act valid, accepted the plaintiff’s contention that
\nthe   notifications  issued  under  s.\t14  and\t the   other
\nprovisions of Chapter III of the Act were invalid, primarily
\nfor the reason that the name of the Manjhis as the  landlord
\nhad  not been mentioned in the notification issued under  s.
\n14 and on this ground he passed a decree directing the State
\nto  restore possession of the forest to the plaintiff so  as
\nto  enable  him to enjoy the same for a\t substituted  period
\nmaking\tallowance  for\tthe 7-1\/2 months for  which  he\t had
\nworked\tthe  jungle before his enjoyment was  interfered  in
\nOctober 1946.  In this view the claim for
\n\t\t\t    301<\/span>
\ndamages for Rs. 55,000 and for mesne profits was disallowed.
\nThe  State filed an appeal to the High Court of\t Patna\tfrom
\nthis  judgment and decree.  The learned Judges reversed\t the
\ndecree of the Subordinate Judge and dismissed the suit\twith
\ncosts, holding that the omission of the name of the  Manjhis
\nin  the\t notification issued on October 14,  1946,  did\t not
\nrender\tthe  same  invalid  and\t that  even  otherwise\t the
\nproceedings under Ch.  III of the Act had been validated  by
\ns. 2 of Act XII of 1949 to whose terms we shall refer in due
\ncourse.\t In view of the previous decisions of the High Court
\nwhich  upheld  the  constitutional  validity  of  the  Bihar
\nPrivate Forests Act, that point was not pressed in the\tHigh
\nCourt.\t The plaintiff thereafter applied to the High  Court
\nfor  a certificate under Art. 133(1)(a) of the\tConstitution
\nand having obtained it has preferred the present appeal.  In
\nthe   petition\t of   appeal  as   originally\tfiled,\t the
\nconstitutional points regarding the validity of the  Private
\nForests Act were not raised, but subsequently the  appellant
\nfiled an application under O. XVIII, r. 3(2) of the  Supreme
\nCourt  Rules  for permission to urge additional\t grounds  in
\nsupport\t of  the  appeal which we  granted.   The  principal
\nground urged in this application was that the main operative
\nprovisions  of\tthe  Bihar  Private  Forests  Act,  both  as
\noriginally  enacted  in 1946 as well as\t when  reenacted  in
\n1948, were unconstitutional as contravening the requirements
\nof s. 299(2) of the Government of India Act, 1935.
\nWe  consider that it will be convenient to deal\t first\twith
\nthe  point  as to whether, assuming that the  Bihar  Private
\nForests Act, 1946 and 1948 were valid, the proceedings under
\nChapter\t III of the Act for declaring the village of Jun  as
\n“a  private protected forest” were legal before\t considering
\nthe  question as to the constitutionality of the Act  raised
\nby  the additional grounds urged before us.  As\t would\thave
\nbeen  noticed  even  from the narration of  the\t facts,\t the
\nprincipal  point  urged for impugning the  validity  of\t the
\nproceedings under Ch.  III of the Act was that the Manjhis,
\n39<\/span>
\n302<\/span>
\nwhose  name had been entered in the record of rights as\t the
\nland-holders of the suit-village of Jun had not been set out
\nin  the\t notification published under s. 14 of the  Act\t and
\nthis was the ground upon which the learned Subordinate Judge
\ndecided the suit in favour of the appellant.  The provisions
\nof s. 14 are in these terms:\n<\/p>\n
\t      “14.    Whenever\t it  is\t proposed   by\t the
\n\t      Provincial   Government  to   constitute\t any
\n\t      private forest a private protected forest, the
\n\t      Provincial    Government\t shall\t  issue\t   a
\n\t      notification (a copy of which shall be  served
\n\t      on  the landlord in the prescribed  manner)(a)
\n\t      declaring\t that it is proposed  to  constitute
\n\t      such forest a private protected forest;\n<\/p><\/blockquote>\n
\t      (b)   specifying\tas nearly as  possible,\t the
\n\t      situation and limits of such forest; and\n<\/p><\/blockquote>\n
\t      (c)   stating   that   any   landlord    whose
\n\t      interests\t are likely to be affected  if\tsuch
\n\t      forest  is  constituted  a  private  protected
\n\t      forest may, within such period, not being less
\n\t      than  three  months  from\t the  date  of\t the
\n\t      notification,  as\t shall\tbe  stated  in\t the
\n\t      notification,  present  to  the  Collector  in
\n\t      writing  any  objection to such  forest  being
\n\t      constituted a private protected forest.
\n\t      Explanation-For the purpose of clause (b),  it
\n\t      shall be sufficient to describe the limits  of
\n\t      the  forest by roads, rivers, ridges or  other
\n\t      well-known     or\t    readily\tintelligible
\n\t      boundaries.”\n<\/p><\/blockquote>\n
It would be seen that s. 14 contemplates two stages: (1) the
\nissue  of  a  notification,  and  (2)  the  service  of\t the
\nnotification, as issued, on the landlord which has to be  in
\nthe prescribed manner.\tThe expression ‘Landlord’ is defined
\nin s. 3(6) as:\n<\/p>\n
\t      “the owner of the estate or tenure in which  a
\n\t      forest   is  comprised  who  is  entitled\t  to
\n\t      exercise any rights in the forest.”\n<\/p><\/blockquote>\n
So  far\t as  the notification  itself  is  concerned,  which
\nprovision is made for the specification of the three matters
\nwhich are set out in sub-cls. (a), (b) and (c), there is  no
\nrequirement  in terms, that the name of the landlord  should
\nbe   set  out.\t It  will  further  be\tobserved  that\t the
\nnotification enables any person claiming
\n303<\/span>
\ninterest as a landlord and who considers that his  interests
\nare likely to be affected by the proceedings taken to prefer
\nhis  objections to the declaration as a\t “private  protected
\nforest”.   In  other words, the notification  is  a  general
\nnotice\tand  its aim is to specify the land  in\t respect  of
\nwhich  the declaration is proposed to be made, so  that\t the
\nemphasis  is more upon the identity of the land\t than  about
\nthe  person  who  owns\tthe land  or  has  rights  over\t it.
\nBesides,  the section in terms specifies what the legal\t and
\nessential  requirements\t as  regards  the  contents  of\t the
\nnotification are and the ordinary rule of construction would
\npoint to those requirements being exhaustive of what the law
\ndemands.   If therefore the specification or mention of\t the
\nname  of the landlord is not an express requirement  of\t the
\nsection, is such a specification or mention a requirement by
\nany necessary intendment?\n<\/p>\n
We   have  already  set\t out  the  text\t of   the   impugned
\nnotification  dated October 14, 1946, and it would  be\tseen
\nthat  it did mention the name of the landlord, but this\t was
\nincorrect  in the sense that the Raja of Ranka who  was\t the
\nproprietor of the estate but who had parted with his  rights
\nover the forests by a mokrari lease in favour of the Manjhis
\nwas  shown as the landlord instead of the Manjhis.   It\t was
\nnever  the  case of the appellant that the  mention  of\t the
\nproprietor’s  name in the notification misled him or  anyone
\nas regards the identity of the land.  We might also  mention
\nthat  Mr.  Jha, learned Counsel for the\t appellant  admitted
\nthat he could not impugn the validity of the notification if
\nnotwithstanding that the name of the landlord specified\t was
\nincorrect,  the\t notification  was served  upon\t the  proper
\nlandlord, It is also common ground that the appellants\ttook
\npart in the proceedings under Ch.  III, so that he knew\t the
\nidentity of the property which was intended to be dealt with
\nby the notification.\n<\/p>\n
The   succeeding  provisions  of  the  enactment  far\tfrom
\nsupporting  the case that the correct specification  of\t the
\nname  of  the landlord is a legal pre-requisite of  a  valid
\nnotification, points to the conclusion that so far
\n304<\/span>
\nas the notification is concerned the name of the landlord is
\nnot  a\tlegal requirement.  For instance, reference  may  be
\nmade  to s. 21 where provision is made for the issue  of  an
\norder  prohibiting, until the date of the publication  of  a
\nnotification under s. 29, the cutting, collecting or removal
\nof  any trees in any forest.  Such an order might be  issued
\nsimultaneously with a notification under s. 14 and the order
\nis  “to\t be published in the neighbourhood of  the  forest”.
\nProvisions  of\tthis  sort indicate  what  we  have  already
\nmentioned,  that  the  emphasis in the\tnotification  is  on
\nspecification  of the land and not so much on who the  owner
\nor  the\t person\t interested in it  was.\t  We  are  therefore
\nclearly\t of the opinion that the learned Judges of the\tHigh
\nCourt  were  right in holding that  the\t notification  under
\ns.   14 did not contravene the statute.\n<\/p>\n
The  next question that arises is whether  the\tnotification
\nwhich was legal under s. 14, had been properly served on the
\ninterested  persons  as required by the\t provisions  of\t Ch.
\nIII.  The principal point that was urged to call in question
\nthe  validity of the service of the notifications was  based
\non  the\t fact that the notices had to be  served  under\t the
\nterms of s. 14 “in the prescribed manner” and that the rules
\nwhich  prescribed  the\tmanner of service  were\t framed\t and
\nissued\tonly on October 21, 1946, with the result  that\t any
\nservice\t of  notice effected before that date could  not  be
\ndeemed\tto  be a proper service or a service  in  accordance
\nwith  the  rules  and therefore of the\tstatute.   We  might
\nhowever state that it was admitted that no notices were,  in
\nfact, served.  Any enquiry, however, of the validity of\t the
\nservice of notices required by s. 14 or other provisions  of
\nthe Act or the effect of the failure to serve them has\tbeen
\nrendered superfluous by the provisions of s. 2 of the  Bihar
\nPrivate\t Forests  (Validating) Act (Act XII of\t1949)  which
\nenacted:\n<\/p>\n
\t      “No  proceeding or action taken under  section
\n\t      15,  21  and 29 of the Bihar  Private  Forests
\n\t      Act, 1946 or under section 15, 21 or 30 of the
\n\t      Bihar Private Forests Act, 1948, or under\t any
\n\t      other section of any of the said Acts from the
\n\t      respective  dates of commencement of the\tsaid
\n\t      Acts, to the date of
\n\t      305<\/span>
\n\t      commencement of this Act shall be deemed to be
\n\t      invalid or shall be called in question in\t any
\n\t      Court, or proceeding whatsoever merely on\t the
\n\t      ground  that a copy of the notification  under
\n\t      section  14  of any of the said Acts  was\t not
\n\t      served on the landlord, or that there was\t any
\n\t      defect or irregularity in the service of\tsuch
\n\t      notification, nor shall any suit,\t prosecution
\n\t      or  other legal proceeding whatsoever, lie  in
\n\t      any  Court of law against any servant  of\t the
\n\t      crown  for or on account of or in\t respect  of
\n\t      any such proceeding or action taken by him.”\n<\/p><\/blockquote>\n
The  learned  Subordinate Judge, by a process  of  reasoning
\nwhich  we are unable to follow, held that the terms of\tthis
\nenactment  were insufficient to validate the non-service  of
\nthe  notice  on the landlord as required by s.\t14  and\t the
\nother  provisions of Ch.  III of the Bihar  Private  Forests
\nAct.   The  learned Judges of the High Court, on  the  other
\nhand,  held and, in our opinion, correctly, that the  effect
\nof  the failure to serve notices or any informality  in\t the
\nservice\t of  the notices required by s.\t 14  and  succeeding
\nsections of the Act was rectified and validated by the\tAct.
\nIn  agreement with the learned Judges of the High  Court  we
\nhold  that the proceedings taken under Ch.  III of the\tAct,
\nincluding the notification issued under s. 14 were valid and
\nin  accordance\twith the law and that if the  Bihar  Private
\nForests\t Act  were valid the plaintiff could have  no  legal
\nground\tof complaint which he could agitate in the suit\t and
\nthat   the  suit  was  therfore\t properly  directed  to\t  be
\ndismissed.\n<\/p>\n
This  leaves the question of the constitutional validity  of
\nthe Act for consideration.  It is necessary to state at\t the
\noutset,\t that  under the deeds dated February 23,  1946\t and
\nMarch 15, 1946, the status of the appellant quod the Manjhis
\nis only that of a licensee or contractor having the right to
\ncut  and  remove the trees etc. and not that  of  a  lessee.
\nThis was the conclusion reached by the Subordinate Judge  on
\nthe relevant terms of the two deeds and this was  apparently
\nnot  even challenged in the High Court.\t On this  basis\t the
\nonly  provisions of the Act which could be said to  directly
\ninvade the rights of the appellant are those
\n306<\/span>
\ncontained  in  Ch.  III the material sections  of  which  we
\nhave- already set out.\tAs provision is made in s. 22 of the
\nAct  for  the ascertainment and payment of  compensation  to
\nforest\tcontractors  whose rights were\teither\tmodified  or
\nextinguished,  the  plea that there was a violation  of\t the
\nguarantee   against   acquisition  by  the   State   without
\ncompensation  contained\t in s. 299(2) of the  Government  of
\nIndia’\tAct,  1935,  would  be\tseen  to  have\tno   factual
\nfoundation.   But  learned Counsel for the  appellant  urged
\nthat  the extinction of the rights of contractors under\t the
\nprovisions  of\tCh.  III, was really in\t the  nature  of  an
\nancillary provision complementary to and designed to  render
\neffective,  the\t taking over of the management\tof  “private
\nprotected  forests”  under Ch.\tIV (to which  we  shall\t im-
\nmediately  advert)  and\t that  if the  taking  over  of\t the
\nmanagement    was   constitutionally   impermissible,\t the
\nprovisions  of\tCh.   III must also be struck  down  as\t un-
\nconstitutional.\t  We see force in this contention  and\twill
\ntherefore  consider the constitutional validity not so\tmuch
\nof Ch.\tIII as of Ch.  IV.\n<\/p>\n
\t      When  a private forest is declared a  “private
\n\t      protected forest” under the provisions of\t Ch.
\n\t      III  the\tprovisions  of\tCh.   IV  come\tinto
\n\t      operation.  Section 31 with which this Chapter
\n\t      opens enacts:\n<\/p>\n
\t      “31.  The control and management of every pri-
\n\t      vate  protected  forest  shall  vest  in\t the
\n\t      Provincial Government.”\n<\/p>\n
\t      The  management and control thus vested is  to
\n\t      be exercised through forest officers and s. 32
\n\t      provides:\n<\/p>\n
\t      “32.   The  Provincial  Government  shall,  by
\n\t      notification, appoint a Forest-Officer for the
\n\t      purposes\tof each private protected forest  or
\n\t      of   a  specified\t portion  of  each   private
\n\t      protected forest.”\n<\/p>\n
His  powers are defined by the succeeding sections and\tnext
\nwe have s. 35 which defines the limits subject to which\t the
\nlandlord  is  permitted to remove timber and  other  produce
\nfrom  private protected forests whose control vests  in\t the
\nProvincial  Government\tunder s. 31, and s. 36\tenables\t the
\nCollector  to  grant  permission to the\t landlord  to  erect
\nembankments  at\t suitable places within the forest  for\t the
\npurpose of irrigating
\n307<\/span>
\nthe  land  beyond the boundaries of the\t said  forest.\t The
\nsection that follows is important and so we shall set it out
\nin full:\n<\/p>\n
\t      “37.  The Provincial Government shall  receive
\n\t      all  revenues  accruing from the\tworking\t and
\n\t      management  of a private protected forest\t and
\n\t      shall  pay the whole expenditure\tincurred  in
\n\t      the working and management of such forest, and
\n\t      the  landlord  of\t such forest  or  any  other
\n\t      person  shall  not  be entitled  to  make\t any
\n\t      objection\t  to   any  expenditure\t  that\t the
\n\t      Provincial   Government\tmay   consider\t  it
\n\t      necessary to incur on such working and manage-
\n\t      ment.”\n<\/p><\/blockquote>\n
Section\t 38 requires the Provincial Government\tto  maintain
\nthe  revenue and expenditure account with an  obligation  to
\nsupply\tan extract of the yearly account to the landlord  of
\nsuch  forests.\t The disbursement of the revenues  which  it
\nreceives  or  the income which it collects under  s.  37  is
\nprovided for by s. 39 which runs:\n<\/p>\n
\t      “39.  (1)\t The  Provincial  Government  shall,
\n\t      during   the   period  of\t its   control\t and
\n\t      management  of  any private  protected  forest
\n\t      pay, at prescribed intervals, to the  landlord
\n\t      of the forest-\n<\/p><\/blockquote>\n
\t      (a)   an\tallowance  calculated on  the  total
\n\t      area  of\tthe  forest  as\t determined  by\t the
\n\t      Conservator of Forests at the rate of one anna
\n\t      per  acre\t per annum or such higher  rate\t not
\n\t      exceeding\t one anna and six pies per acre\t per
\n\t      annum  as the Provincial Government may,\tfrom
\n\t      time  to\ttime, by general or  special  order,
\n\t      determine; and\n<\/p><\/blockquote>\n
\t      (b)   the\t net profits, if any, accruing\tfrom
\n\t      the working and management of the forest,
\n\t      (2)   For\t the purpose of calculating the\t net
\n\t      profits, the total expenditure incurred on the
\n\t      working and management of the forest shall  be
\n\t      adjusted\tagainst\t the total income  from\t the
\n\t      working  and  management\tup to  the  date  of
\n\t      account and the amount of any deficit shall be
\n\t      carried\tforward\t  with\t interest   at\t the
\n\t      prescribed  rate from year to year  till\tsuch
\n\t      amount is made up and surplus is effected.
\n\t      (3). . . . . . . . . . . . . . . . . . .”\n<\/p><\/blockquote>\n
\t      308<\/span><\/p>\n
\t      and  s. 40 which might be termed\ta  residuary
\n\t      provision reads:\n<\/p><\/blockquote>\n
\t      “40.  The rights of right-holders in a private
\n\t      protected\t  forest  shall\t be   exercised\t  in
\n\t      accordance with the rules.”\n<\/p><\/blockquote>\n
It is only necessary to add that the provisions contained in
\nthe  re-enacted Act IX of 1948 are  substantially  identical
\nexcept as to variation in the numbering of the sections\t and
\nit  is therefore unnecessary to cumber this judgment with  a
\nreference to the corresponding provisions of that enactment.
\nIn  the main, the argument of Mr. Jha, learned\tCounsel\t for
\nthe  appellant\ton  this point was based  on  the  reasoning
\ncontained  in the judgment of a Special Bench of  the  Patna
\nHigh  Court in M. D. Kameshwar Singh v. State of  Bihar\t (1)
\nwhere the learned Judges held the Bihar State Management  of
\nEstates\t and  Tenures Act, 1949, to be ultra  vires  of\t the
\npowers\tof  the Provincial Legislature as contained  in\t the
\nGovernment  of India Act, 1935.\t The Act there impugned\t was
\none which was described as an “Act to provide for the  State
\nManagement of estates and tenures in the Province of Bihar”.
\nProvision  was made for Government notifying any estates  or
\ntenures\t in  the  Province  and\t on  such  notification\t the
\nmanagement of the estate or tenure was to vest in an officer
\ndesignated by the Act.\tOn such management being taken over,
\nthe  power of the proprietor or tenure-holder to manage\t the
\nestate was to cease and he was rendered incompetent to\tdeal
\nwith  or have any right to create interests in the  property
\nby way of mortgage or lease.  The rents and profits accruing
\nfrom the estate were to be payable to and to be collected by
\nthe  Manager who alone was, under the statute  competent  to
\ngrant\tvalid\treceipts  therefor.   There   were   special
\nprovisions  empowering the Manager to order the\t removal  of
\nmortgagees or lessees-in-possession by virtue of  agreements
\nwith  the proprietor or tenure-holder.\t Special  provisions
\nwere also made for dealing with the claims of creditors-both
\nsecured\t and  unsecured.   Section 20(5)  of  the  Act\tmade
\nprovision for the disposal of the
\n(1)  (1950) I.L.R. 29 Patna 790.\n<\/p>\n
\t\t\t    309<\/span><\/p>\n
income,\t rents\tand profits received by the  manager.\tThey
\nwere  to  be  applied first for the payment  of\t revenue  to
\nGovernment,  then  to  municipal rents,\t next  to  costs  of
\nmanagement  and\t supervision, then for an allowance  to\t the
\nproprietor to be fixed by rules made by Government, and\t any
\nsurplus\t  remaining  thereafter\t was  to  be  paid  to\t the
\nproprietor  at, the end of each financial year\twith  power,
\nhowever,  to  the  manager to retain  such  portion  of\t the
\nsurplus\t which\the  might consider necessary  as  a  working
\nbalance for the ensuing year.  The manager was to have power
\nto  contract loans on the security of the estate or  tenure.
\nThe  jurisdiction of the civil courts was barred in  respect
\nof matters for which provision was made by the Act.   Though
\nthere  was  a  direction that the manager  should  have\t his
\naccounts  audited with a right to the proprietor or  tenure-
\nholder\tto  inspect these accounts, in cases  however  where
\nthese accounts were not audited the right of the  proprietor
\nwas  merely to draw the attention of the Government  to\t the
\nlapse, with however a bar on enforcing such rights by resort
\nto the courts even in the event of the Provincial Government
\nnot taking any action.\n<\/p>\n
The validity of the enactment was challenged principally  on
\ntwo grounds: (1) that an Act of this sort which deprived the
\nproprietors  and  tenure-holders  of  possession  of   their
\nproperty for no default on their part and for no justifiable
\nreason\t grounded   on\tpublic\tinterest  was\tbeyond\t the
\nlegislative  competence\t of the Province, (2) that  even  if
\ncompetent,  it\tamounted  to  “an  acquisition\tof  property
\nwithout\t compensation”\tand for a purpose which\t was  not  a
\npublic purpose so as to be repugnant to the provisions of s.
\n299(2)\tof  the\t Government of\tIndia  Act,  1935.   Justice
\nShearer\t and  Justice  Sinha, as he then was,  were  of\t the
\nopinion that the Act in question was beyond the\t legislative
\ncompetence  of the Province under item 21 of the  Provincial
\nLegislative  List.  Justice Das, as he then was,  being\t the
\nother  learned Judge constituting the Special Bench  however
\ntook  the view that the variety of matters set out in  Entry
\n21  of\tthe Provincial Legislative List was wide  enough  to
\ninclude legislation of
\n40<\/span>
\n310<\/span>
\nthe  type then before the Court. Both Sinha and Shearer\t JJ.
\nwere  of the opinion that the Act violated the\trequirements
\nof s. 299(2).  Learned Counsel-Mr. Jha-submitted that  there
\nwas, under the Bihar Private Forests Act, 1946 and 1948, the
\nsame type of deprivation of possession and management of the
\nproprietor  or tenure-holder, the same\trestrictions  placed
\nupon  enjoyment, and a similar vesting of powers and  duties
\non  the officers of the State Government as the\t manager  of
\nthe estate under the Bihar Act of 1949 and on these premises
\nhe contended that on the same line of reasoning, the Act now
\nimpugned should be held to be both beyond the competence  of
\nthe  Provincial Legislature as well as\tunconstitutional  as
\nviolating the requirements of s. 299(2) of the Government of
\nIndia  Act,  1935.  Before entering on a discussion  of\t the
\npoints urged we should add that the constitutional  validity
\nof the Acts now impugned has been the subject of decision of
\nthe  Patna High Court on two occasions and  these  judgments
\nare reported in Sm. Khemi Mahatani v. Charan Napit (1),\t and
\nK.B.N.\tSingh  v. State (2).  In both of  them\tthe  learned
\nJudges of the High Court have distinguished the decision  in
\nKameshwar  Singh v. State of Bihar (3) and have\t upheld\t the
\nvalidity of the Acts now impugned.\n<\/p>\n
Learned Counsel for the appellant formulated three points in
\nsupport of his plea regarding the invalidity of the impugned
\nenactment  and its application to the petitioner:  (1)\tthat
\nthe Bihar Private Forests Acts of 1946 and 1948 were  beyond
\nthe competence of the Provincial Government-not being within
\nthe  legislative entries in the Provincial Legislative\tList
\nin Sch.\t VII of the Government of India Act, 1935, (2)\tthat
\neven if tile legislation was competent in the sense of being
\ncovered\t  by  the  entries  in\tthe  List,  the\t  same\t was
\nunconstitutional   as\tbeing  in   contravention   of\t the
\nconstitutional\trequirements of s. 299(2) of the  same\tAct,
\n(3)  that  even if the legislation were competent  and\talso
\nconstitutionally  valid under the Government of\t India\tAct,
\n1935, its provisions could not be enforced
\n(1) A.I.R. 1953 Patna 365.  (2) (1956) I.L.R. 36 Patna 69.
\n(3) (1950) I.L.R. 29 Patna 790.\n<\/p>\n
311<\/span><\/p>\n
against\t the  petitioner after the  Constitution  came\tinto
\nforce  on  January  26,\t 1950,\tas  the\t provisions  of\t the
\nenactment  contravened\tArts.  19(1)(f)\t and  31(2)  of\t the
\nConstitution.\n<\/p>\n
We  shall  now\tproceed to deal with these  points  in\tthat
\norder: (1) Legislative incompetence under the Government  of
\nIndia  Act,  1935.-The argument of learned Counsel  on\tthis
\nhead was half-hearted and was based on reliance on  passages
\nin the judgment of the Special Bench of the Patna High Court
\nin  Kameshwar  Singh  v.  State\t of  Bihar(1).\t It  is\t not
\nnecessary  for\tthe  purposes of this case  to\tcanvass\t the
\nquestion   as  to  whether  the\t taking\t over,\tfor   better
\nmanagement,  of an estate in the manner as was done  by\t the
\nBihar  Act  of\t1949  is or is not within  item\t 21  of\t the
\nProvincial  Legislative List in Sch.  VII to the  Government
\nof  India  Act,\t 1935.\t The  enactments  now  impugned\t are
\ncertainly  in relation to “forests” and fall within item  22
\nof   the  Provincial  Legislative  List\t which\treads\t“22.
\nForests”.   It is not necessary to decide whether  entry  21
\ndealing with “Land etc.” would cover legislation on forests,
\nbecause of the special provision in Entry 22 in relation  to
\n“forests”-an  entry which has come down from the  Devolution
\nRules  under  the  Government of India Act,  1919.   In\t our
\nopinion,  the  item  “Forests” would permit  all  and  every
\nlegislation  which  in pith and substance, to use  a  phrase
\nfamiliar  in this branch of the law, was on the\t subject  of
\n“forests”.   It is not possible to argue that the  two\tActs
\nhere impugned do not satisfy this test.\n<\/p>\n
Learned\t Counsel  faintly suggested that item  22  ‘Forests’
\nwould  not  cover  legislation\tregarding  “management”\t  of
\nforests.    We\tconsider  this\tsubmission  wholly   without
\nsubstance.   The  considerations arising from the  width  or
\namplitude  to  be  attached to the  meaning  of\t expressions
\ndealing\t with the conferment of legislative power  occurring
\nin  a constitutional document should suffice to reject\tthis
\nsubmission.   In  this\tconnection we  might  refer  to\t the
\ndecision  of  the  Federal Court  in  Administrator,  Lahore
\nMunicipality v.\t    Daulat  Ram Kapur (2) which\t dealt\twith
\nthe scope
\n(1) (1950) 1 L. R, 29 Patna 790.\n<\/p>\n
(2) [1942] F.C.R. 31.\n<\/p>\n
312<\/span><\/p>\n
of the entry ‘Salt’ in the Central Legislative List in\tSch.
\nVII.\n<\/p>\n
Besides,  reference  may  be made also\tto  the\t legislative
\npractice  which preceded the Government of India Act,  1935,
\nas  having relevance to the understanding of the  scope\t and
\nambit  of the entry.  The Indian Forests Act of\t 1878  which
\nrepealed the earlier enactments and consolidated the law  in
\nrelation  to the control over forests primarily\t dealt\twith
\nforests\t which\twere the property of the  Government  or  in
\nwhich Government had proprietary rights.  But it had also  a
\nchapter-Ch.  VI-dealing with “control on forests or land not
\nbeing  the property of the Government”.\t Section 35  of\t the
\nAct  enabled the local Government by a notification  in\t the
\nlocal  official\t gazette  to  regulate\tthe  maintenance  of
\nforests\t for  particular purposes and pass  orders  in\tthat
\nbehalf,\t and s. 36 enacted that “in case of neglect  of,  or
\nwilful disobedience to, such regulations”, and what is\tmore
\nimportant,  “if the purposes of any work to  be\t constructed
\nunder  s.  35 so require”, the local Government\t may,  after
\nnotice\tin writing to the owner of such forest or  land\t and
\nafter  considering his objections, if any, “place  the\tsame
\nunder the control of a Forest-officer, and may declare\tthat
\nall or any of the provisions of the Act relating to reserved
\nforests shall apply to such forest or land.
\nThe net profits, if any, arising from the management of such
\nforest or land shall be paid to the said owner.”
\nStatutes  with\tsimilar\t provisions  were  also\t enacted  by
\nvarious\t local\tLegislatures  (vide,  for  example,   Madras
\nForests\t Act,  1882).  This Central enactment  of  1878\t was
\nrepealed and re-enacted in a consolidated form by the Indian
\nForests\t Act, 1927.  Chapter V of the later  statute-ss.  35
\nand  36 thereof-reproduce in practically the same terms\t the
\nprovisions of the Act of 1878 in relation to the taking over
\nthe  management of private forests.  As we are\tnow  dealing
\nwith  the  legislative power in this regard, we are  not  so
\nmuch  concerned with the grounds upon which  the  Government
\ncould take over and manage forests belonging to
\n313<\/span>
\nprivate proprietors, as with the practice of the  Government
\ntaking\tover  the  management  of  the\tforests\t if   public
\ninterests so require.  This interest might vary from time to
\ntime  but  the above legislation would show that  if  public
\ninterest did require, the Act authorized Government to\ttake
\nover  the management of private forests on terms  of  making
\nover the income received to the proprietor.
\nIt  is unnecessary to dilate upon the role of forests  in  a
\ncountry\t whose economy is predominantly agricultural and  it
\nhas  been this aspect that has prompted the  legislation  to
\nwhich  we  have\t just now adverted.   Apart  from  being  an
\nimportant source of fuel and of raw materials necessary\t for
\ndomestic,   industrial\tand  agricultural  purposes,   their
\npreservation  is  essential for the development\t of  cattle-
\nwealth by providing grazing grounds.  Their function in\t the
\nconservation  of  soil-fertility and in the  maintenance  of
\nwaterregime  by\t improving the filth and  the  water-holding
\ncapacity  of the soil cannot be exaggerated.   They  protect
\nthe  land  against excessive soil-erosion caused  either  by
\nrainfall  or  against a desiccation and\t erosion  by  winds.
\nTheir beneficial influence on the growth of crops and on the
\nmaintenance of an equitable climate cannot be  over-stressed
\n(vide First Five Year Plan, p. 285).  Thanks to the  inroads
\nmade on forestwealth owing to the necessities created by the
\nwar,  we had the spectacle of large forest areas denuded  of
\ntheir timber, afforestation making either a slow progress or
\nnot  attempted\tat all.\t So long as the\t war  continued\t the
\nsacrifice of the forests was one of the incidents which\t the
\ncountry\t had to bear as part of the war-effort but owing  to
\nthe  high  prices  of  fuel  and  timber,  the\tpractice  of
\ndenudation  of\tforests, which started during  the  wartime,
\ncontinued  and landholders owning private forests sought  to
\nmake  quick  gains by leasing out their\t forests  for  large
\nscale  cutting.\t In these circumstances public interest\t and
\nnational  economy  required  that  this\t process  should  be
\nstopped and the ravages caused by wartime destruction should
\nbe  made  good by scientific management\t and  regulation  of
\nforests and by a process of afforestation.  It was
\n314<\/span>
\nin  these circumstances that in several Provinces  of  India
\nduring\tthe  year 1946 when these Provinces were  under\t the
\nrule  of  Governors under s. 93 of the Government  of  India
\nAct,  1935,  enactments were passed  vesting  in  Government
\npower\tto   take   over  and  manage\tfor   the   purposes
\nabovementioned\tareas of forest-lands belonging\t to  private
\npersons.   The\tsituation, therefore,  demanded\t that  there
\nshould\tbe a large extension of the grounds upon which\tsuch
\nprivate forests would be taken over for better management by
\nthe  State officials as compared with Ch.  V of\t the  Indian
\nForests Act, 1927.  The correlation between Bihar Act III of
\n1946  now  impugned  and the Indian Forests  Act,  1927,  is
\nbrought out in the long title of ,the former, the  operative
\nwords of which are repeated in the preamble:\n<\/p>\n
\t      “An  Act\tto provide for the  conservation  of
\n\t      forests  which are not vested in the Crown  or
\n\t      in  respect of which notifications and  orders
\n\t      issued under the Indian Forests Act, 1927\t are
\n\t      not in force.”\n<\/p><\/blockquote>\n
The  impugned Act was therefore an Act supplementary to,  or
\nrather a complement of the Indian Forests Act of 1927 and is
\nclearly\t covered by the Entry ‘Forests’ in item 22 of  State
\nLegislative  List.  The argument, therefore, that  Entry  22
\nenabled a legislation to be passed in relation to  “forests”
\nbut  did not include therein the power to assume  management
\nand  control of forests belonging to private proprietors  is
\nentirely  without foundation.  In view of what we have\tjust
\nnow stated it would follow that the argument concerning\t the
\nlegislative  competence to enact the Bihar Acts of 1946\t and
\n1948 must be rejected.\n<\/p>\n
The next submission to be considered is whether the impugned\n<\/p>\n
-enactments  violate  s. 299(2) of the Government  of  India
\nAct, 1935.  Section 299(2) runs in these terms:\n<\/p>\n
\t      “299(2).\tNeither the Federal nor a provincial
\n\t      Legislature  shall have power to make any\t law
\n\t      authorising  the\tcompulsory  acquisition\t for
\n\t      public purposes of any land, or any commercial
\n\t      or industrial undertaking, or any interest in,
\n\t      or  in any company owning, any  commercial  or
\n\t      industrial undertaking,
\n\t      315<\/span>
\n\t      unless  the  law provides for the\t payment  of
\n\t      compensation  for\t the property  acquired\t and
\n\t      either  fixes the amount of  compensation,  or
\n\t      specifies\t the  principles on which,  and\t the
\n\t      manner in which, it is to be determined.”\n<\/p><\/blockquote>\n
The main, if not the entire argument of learned Counsel\t for
\nthe  appellant on this point was vested on certain  passages
\nfound  in the decision of this Court in Dwarkadas  Shrinivas
\nof  Bombay v. The Sholapur Spinning & Weaving Co. Ltd.<\/a>\t(1).
\nThe  validity  of the law that was there  considered  was  a
\npost-Constitution enactment (Act XXVIII of 1950 dated  April
\n10,  1950)  which replaced an Ordinance issued\tin  January,
\n1950.  The rights of the appellant before this court had  to
\nbe  considered in the light of the guarantees  contained  in
\nPart  III of the Constitution.\tUnder the provisions of\t the
\nenactment  there  impugned the management  of  the  Sholapur
\nSpinning  &  Weaving  Co.  Ltd.,  was  taken  over  by\t the
\nGovernment  and\t the question that was debated\twas  whether
\nthis  taking  over amounted to “an acquisition” such  as  is
\nreferred  to  in  Art. 31(2) of the  Constitution  in  these
\nterms:\n<\/p>\n
\t      “31(2).\tNo  property shall  be\tcompulsorily
\n\t      acquired\tor requisitioned save for  a  public
\n\t      purpose  and save by authority of a law  which
\n\t      provides for compensation for the property  so
\n\t      acquired or requisitioned and either fixes the
\n\t      amount  of the compensation or  specifies\t the
\n\t      principles on which, and the manner in  which,
\n\t      the  compensation\t is  to\t be  determined\t and
\n\t      given;  and  no such law shall  be  called  in
\n\t      question\tin any court on the ground that\t the
\n\t      compensation provided by that law is not\tade-
\n\t      quate.”\n<\/p><\/blockquote>\n
Mahajan,  J.  (as he then was) who  delivered  the  majority
\ndecision  of the Court in dealing with this point  expressed
\nhimself in these terms:\n<\/p>\n
\t      “The  next contention of the  learned  counsel
\n\t      that  the word ‘acquisition’ in article  31(2)
\n\t      means  the acquisition of title by  the  State
\n\t      and that unless the State becomes vested\twith
\n\t      the  property  there  can\t be  no\t acquisition
\n\t      within the meaning of the clause
\n\t      (1)   [1934] S.C.R. 674.\n<\/p><\/blockquote>\n
\t      316<\/span><\/p>\n
\t      and  that the expression\t‘taking\t possession’
\n\t      connoted\tthe  idea of requisition  cannot  be
\n\t      sustained and does not, to my mind, affect the
\n\t      decision of the case For the proposition\tthat
\n\t      the  expression ‘acquisition’ has the  concept
\n\t      of vesting of title in the State reliance\t was
\n\t      placed  on  the opinion of Latham,  C.  J.  in
\n\t      Minister\t of   State   for   the\t  Army\t  v.\n<\/p><\/blockquote>\n
\t      Dalziel ……………………… Latham, C.
\n\t      J., made the   following observations:
\n\t      ‘The  Commonwealth  cannot  be  held  to\thave
\n\t      acquired\tland unless it has become the  owner
\n\t      of  land or of some interest in land.  If\t the
\n\t      Commonwealth becomes only a possessor but does
\n\t      not become an owner of land, then, though\t the
\n\t      Commonwealth  may\t have rights in\t respect  to
\n\t      land,  which land may be called property,\t the
\n\t      Commonwealth  has not in such a case  acquired
\n\t      property………\t The majority of  the  Court
\n\t      held otherwise and expressed the opinion\tthat
\n\t      the  taking   by\tthe  Common-wealth  for\t  an
\n\t      indefinite period of the exclusive  possession
\n\t      of  property  constituted\t an  acquisition  of
\n\t      property\twithin\tthe meaning  of\t section  51
\n\t      (xxxi)  of  the Constitution.   This  is\twhat
\n\t      Rich,  J.\t said,\trepresenting  the   majority
\n\t      opinion:-\n<\/p><\/blockquote>\n
\t      ‘It   would,   in\t my   opinion,\t be   wholly
\n\t      inconsistent with the language of the placitum
\n\t      to   hold\t  that,\t  whilst   preventing\t the
\n\t      legislature  from authorizing the\t acquisition
\n\t      of  a  citizen’s full title except  upon\tjust
\n\t      terms, it leaves it open to the legislature to
\n\t      seize possession and enjoy the full fruits  of
\n\t      possession,  indefinitely,  on  any  terms  it
\n\t      chooses, or upon no terms at all.’
\n\t      the    expression\t  ‘acquisition’\t   in\t our
\n\t      Constitution  as well as in the Government  of
\n\t      India  Act is the one enunciated by Rich,\t J.,
\n\t      and  the\tmajority of the Court  in  Dalziel’s
\n\t      case.   With  great  respect I  am  unable  to
\n\t      accept  the  narrow  view\t that  ‘acquisition’
\n\t      necessarily  means  acquisition  of  title  in
\n\t      whole or part of the property.  ”\n<\/p><\/blockquote>\n
Learned Counsel naturally relied on the reference to
\n\t\t\t    317<\/span>
\nthe  provisions of the Government of India Act contained  in
\nthe  above  passage.   Before we deal  with  this  argument,
\nhowever,  we consider it proper to refer to the judgment  of
\nthis Court in State of West Bengal v. Subodh Gopal Bose<\/a> (1),
\nwhich  was  composed of four of the Judges  who\t formed\t the
\nbench  in the case of Dwarkadas Shrinivas, etc. (supra)\t and
\nin  which  judgment was delivered almost at  the  same\ttime
\n(December 17 and December 18).\tIn the West Bengal case, the
\nleading\t judgment was delivered by Patanjali Sastri, C.\t J.,
\nMahajan, J., merely expressing his concurrence stating\tthat
\nthe principles enunciated by the learned Chief Justice\twere
\nthe  same as those which he had formulated in  the  Sholapur
\ncase.\tIt  is because of this context that  the  manner  in
\nwhich this point was dealt with by Patanjali Sastri, C.\t J.,
\nassumes more importance.  It was urged before the Court that
\nthe  meaning  of the word “acquired” in\t the  phrase  ‘taken
\npossession  of or acquired’ in Art. 31(2) as it then  stood,
\nconnoted  nothing more than and was intended to\t confer\t the
\nidentical  guarantee  as was contained in s. 299(2)  of\t the
\nGovernment of India Act, 1935, which had used the expression
\n‘acquired’,  the  words ‘taken possession  of’\tbeing  added
\nmerely\tto  overcome  the  decisions  which  had  held\tthat
\nrequisitioning of property was not within the constitutional
\nprotection.    It  was\ttherefore  urged  that\t the   words
\n‘acquired’  or ‘taken possession of’ implied that the  legal
\ntitle  in the property passed to the State and could not  be
\ntaken to signify or include forms of deprivation of  private
\nproperty which did not involve the element of the passing of
\ntitle  to  the State.  Repelling this argument\tthe  learned
\nChief Justice said:\n<\/p>\n
\t      “I  see no sufficient reason to  construe\t the
\n\t      words  ‘acquired or taken possession’ used  in
\n\t      clause (2) of article 31 in a narrow technical
\n\t      sense.   The  Constitution  marks\t a  definite
\n\t      break  with the old order and  introduces\t new
\n\t      concepts\t in   regard   to   many    matters,
\n\t      particularly  those  relating  to\t fundamental
\n\t      rights,  and  it cannot be  assumed  that\t the
\n\t      ordinary
\n\t      (1)   [1954] S.C.R. 587.\n<\/p><\/blockquote>\n
\t      41<\/span>
\n\t      318<\/span><\/p>\n
\t      word acquisition’ was used in the Constitution
\n\t      in the same narrow sense in which it may\thave
\n\t      been  used  in  pre-Constitution\t legislation
\n\t      relating\t to  acquisition  of  land.    These
\n\t      enactments,  it  should be noted,\t related  to
\n\t      land, whereas article 31(2) refers to moveable
\n\t      property\tas  well,  as  to  which  no  formal
\n\t      transfer\tor  vesting of title  is  necessary.
\n\t      Nor  is there any warrant for  the  assumption
\n\t      that  ‘taking  possession\t of  property’\t was
\n\t      intended\t to  mean  the\tsame  thing   as   ‘
\n\t      requisitioning  property’ referred to  in\t the
\n\t      entries  of  the\tSeventh Schedule   I  am  of
\n\t      opinion  that the word ‘acquisition’  and\t its
\n\t      grammatical variations should, in the  context
\n\t      of  article  31 and the entries in  the  Lists
\n\t      referred\tto  above, be  understood  in  their
\n\t      ordinary\tsense,\tand  the  additional   words
\n\t      ‘taking possession of’ or requisitioning’\t are
\n\t      used  in\tarticle\t 31(2) and  in\tthe  entries
\n\t      respectively, not in contradiction of the term
\n\t      ‘acquisition’, so as to make it clear that the
\n\t      words taken together cover even those kinds of
\n\t      deprivation which do not involve the continued
\n\t      existence of the property after it is acquired
\n\t      The  expression ‘shall be taken possession  of
\n\t      or  acquired’  in clause (2) implies  such  an
\n\t      appropriation  of the property or\t abridgement
\n\t      of  the  incidents of its ownership  as  would
\n\t      amount to a deprivation of the owner.”\n<\/p><\/blockquote>\n
It  would  be seen from the extracted passages\tin  the\t two
\njudgments,  that the reference to the meaning of  “acquired”
\nin  s. 299(2) of the Government of India Act, 1935  made  by
\nMahajan, J., as he then was, in Dwarkadas Shrinivas (1)\t was
\nbut an incidental remark. by way of orbiter and was not\t and
\nwas  not intended to be, a decision regarding the  scope  or
\ncontent\t of that section.  If support were needed  for\tthis
\nposition, reference may be made to the observations of\tDas,
\nActing\tC.  J.\tin Bhikaji Narain Dhakras v.  The  State  of
\nMadhya Pradesh<\/a> (2).  The learned Chief Justice said:\n<\/p>\n
\t      “Prior to the Constitution when there were  no
\n\t      fundamental   rights,   s.   299(2)   of\t the
\n\t      Government   of\tIndia\tAct,   1935,   which
\n\t      corresponds to Art. 31 had
\n\t       (1)  [1954] S.C.R. 674.\t       (2) [1955]  2
\n\t      S.C.R. 589.\n<\/p><\/blockquote>\n
\t      319<\/span><\/p>\n
\t      been construed by the Federal Court in  Kunwar
\n\t      Lal  Singh  v.  The  Central  Provinces  (1944
\n\t      F.C.R. 284) and in the other cases referred to
\n\t      in  Rajah\t of Bobbili v. The State  of  Madras
\n\t      (1952  1\tM.L.J. 174) and it was held  by\t the
\n\t      Federal  Court  that the\tword  ,;acquisition’
\n\t      occurring in s. 299 had the limited meaning of
\n\t      actual  transference of ownership and not\t the
\n\t      wide  meaning of deprivation of any kind\tthat
\n\t      has  been given by this Court in Subodh  Gopal
\n\t      Bose’s  case  (1954 S.C.R. 587) to  that\tword
\n\t      acquisition appearing in article 31(2) in\t the
\n\t      light   of   the\tother  provisions   of\t the
\n\t      Constitution.”\n<\/p><\/blockquote>\n
During the years when the Government of India Act, 1935, was
\nin operation the Privy Council had no occasion to  pronounce
\nupon  the  meaning  of s. 299(2),  but\twe  might,  however,
\nusefully refer to the recent decision of the House of  Lords
\nin  Belfast Corporation v. O. D. Cars Ltd. (1) where the  I-
\nlouse had to consider the import of the expression ‘take any
\nproperty’  occurring in a similar context in the  Government
\nof  Ireland  Act, 1920 (X & XI George V, Ch.  67),  s.\t5(1)
\nwhere the relevant words were:\n<\/p>\n
\t      “In  the exercise of their power to make\tlaws
\n\t      neither………… the Parliament of Northern
\n\t      Ireland  shall  make  a law so  as  to  either
\n\t      directly or indirectly…………… take any
\n\t      property without compensation.”\n<\/p><\/blockquote>\n
The  facts in the case before the House of Lords  were\tthat
\nthe respondent who carried on business as garage proprietors
\nand  general  motor  engineers made an\tapplication  to\t the
\nappellant  for\tthe  grant of permission  to  erect  certain
\nfactories  and shops on its land.  This was refused  on\t the
\nground\tthat  the  height  and\tcharacter  of  the  proposed
\nbuildings  would not be in accordance with the\trequirements
\nof  the zone in which the site was situate.  The  respondent
\nthereupon  claimed compensation for injurious  affection  on
\nthe ground that its property had been “taken”.\tThe Court of
\nAppeal of Northern Ireland upheld the respondent’s claim and
\nthe  appellant Corporation brought the matter in  appeal  to
\nthe House of Lords.  The
\n(1)  [1960] A.C. 490.\n<\/p>\n
320<\/span><\/p>\n
argument  pressed before the House, and which  found  favour
\nwith  the Court below in Ireland, was based on the  extended
\nmeaning\t of  the  word ‘acquired’ attributed to\t it  in\t the
\ndecisions  of the Supreme Court of the United  States  which
\nhave  been referred to and adopted this Court  in  Dwarkadas
\nShrinivas  etc.\t (1) and in Subodh Gopal Bose’s\t cases\t(2).
\nViscount Simonds, delivering the leading judgment, observed:\n<\/p>\n
\t      “I  come\tthen to the  substantial  questions:
\n\t      what  is the meaning of the word ‘take’?\twhat
\n\t      is the meaning of the word ‘Property’? what is
\n\t      the  scope  of the phrase ‘take  any  property
\n\t      without compensation’? ……… I hope that I
\n\t      do  not over- simplify the problem, if  I\t ask
\n\t      whether  anyone using the English language  in
\n\t      its  ordinary  signification would  say  of  a
\n\t      local authority which imposed some restriction
\n\t      upon  the user of property by its\t owner\tthat
\n\t      authority had ‘taken’ that owner’s ‘property’.
\n\t      He would not make any fine distinction between
\n\t      ‘take’, ‘take over’ or ‘take away’.  He  would
\n\t      agree  that `property’ is a word of very\twide
\n\t      import,  including  intangible  and   tangible
\n\t      property.\t  But he would surely deny that\t any
\n\t      one  of  those rights which in  the  aggregate
\n\t      constituted ownership of property could itself
\n\t      and  by itself aptly be called ‘property’\t and
\n\t      to  come\tto the instant case, he\t would\tdeny
\n\t      that the right to use property in a particular
\n\t      way   was\t itself\t property,  and\t  that\t the
\n\t      restriction or denial of that right by a local
\n\t      authority\t was a ‘taking ‘, ‘taking  away’  or
\n\t      ‘taking  over’ of ‘property Fully\t recognizing
\n\t      the   distinction\t that  may   exist   between
\n\t      measures that are regulatory and measures that
\n\t      are  confiscatory and that a measure which  is
\n\t      ex  facie\t regulatory  may  in  substance\t  be
\n\t      confiscatory…..”\n<\/p><\/blockquote>\n
Lord  Radcliffe followed on the same lines and\treferred  in
\nthis  context to Slattery v. Naylor (3), where the  validity
\nof  a municipal bye-law which prevented an owner from  using
\nthe  property  which he had purchased  ground-for  the\tonly
\npurpose for which it could
\n(1) [1954] S.C.R. 674.\t\t(2) [1954] S.C.R. 587.
\n(3) (1888) 13 App.  Cas. 446.\n<\/p>\n
321<\/span><\/p>\n
be  used  was  upheld  by  the\tJudicial  Committee  as\t not
\namounting  to  depriving an owner of  his  property  without
\ncompensation.\n<\/p>\n
We  consider  the principles laid down in the  Belfast\tcase
\n(supra) apt as an aid to the construction of the content  of
\nthe expression “acquired” in s. 299(2) of the Government  of
\nIndia  Act, 1935.  The contention urged by  learned  Counsel
\nfor the appellant that the deprivation of the land-holder of
\nthe right of management and control over the forest  without
\nhis  legal  title thereto or  beneficial  enjoyment  thereof
\nbeing  affected\t amounts to acquisition of  land  within  s.
\n299(2) of the Government of India Act, 1935 must be  reject-
\ned.  The extract we have made earlier from the\tjudgment  of
\nViscount Simonds affords a sufficient answer to a submission
\nthat the right of the landholder to possession was itself  a
\nright  of  property  and  as this had  been  taken  over  it
\nconstituted   an  acquisition  within\tthe   constitutional
\nprovision.   Property, as a legal concept, is the sum  of  a
\nbundle of rights and in the case of tangible property  would
\ninclude\t the  right of possession, the right to\t enjoy,\t the
\nright to destroy, the right to retain, the right to alienate
\nand  so on.  All these, of course, would be subject  to\t the
\nrelevant law-procedural or substantive-bearing upon each  of
\nthese incidents, but the strands that make up the total\t are
\nnot  individually  to be identified  as\t those\tconstituting
\n“property”.   So  understood,  there is\t no  scope  for\t the
\ncontention that the imposition, so to speak, of a compulsory
\nGovernmental  agency for the purpose of managing the  forest
\nwith  liability\t imposed to account for the income  as\tlaid
\ndown  by  the statute is an “acquisition”  of  the  property
\nitself within s.    299(2)  of the Government of India\tAct,
\n1935.\n<\/p>\n
A  very minor point was urged by the learned  Counsel  based
\nupon the language of sub-s. (5) of s. 299 which reads:\n<\/p>\n
\t      “299  (5).   In this section  ‘land’  includes
\n\t      immovable\t property  of  every  kind  and\t any
\n\t      rights   in   or\tover  such   property,\t and
\n\t      ‘undertaking’    includes\t   part\t   of\t  an
\n\t      undertaking.”\n<\/p><\/blockquote>\n
322<\/span><\/p>\n
Learned\t Counsel  suggested that the  right  to\t possession,
\nmanagement  and control over the estate was “a right  in  or
\nover  such  property” and that if it was so  construed,\t the
\ntaking\tover  of  such\ta  right  would\t be  tantamount\t  to
\n“acquisition  of  land”\t within\t s.  299(2).   There  is  no
\nsubstance  in this argument, because the rights referred  to
\nin  s. 299(5) are ‘derivative rights, like interests  carved
\nby an owner-a lessee, mortgagee etc.-and not an incident  of
\na  property right regarding which we have already  expressed
\nourselves.   We therefore hold that the impugned  enactments
\nwere validly enacted and are not obnoxious to the provisions
\nof the Government of India Act, 1935.\n<\/p>\n
There  remains for consideration the third point urged\tthat
\neven if the Bihar Private Forests Acts, 1946, and 1948\twere
\nvalid  when  enacted,  the  relevant  provisions  cannot  be
\nenforced  against  the\tappellant on  the  ground  that\t the
\nenforcement would violate the fundamental rights granted  to
\nthe  appellant by Arts. 19 and 31 of the Constitution.\t The
\nargument was this: The lease in favour of the appellant\t was
\nfor  terms  of\t8 or 9 years and would\thave  continued,  if
\nnothing\t else had happened, till certain dates in  1954\t and
\n1955.  He has, however, been deprived of the benefit of\t the
\nlease  by the operation of the impugned legislation and\t the
\nappellant’s  rights  which he could have  otherwise  enjoyed
\nbeyond January 26, 1950 have been denied to him, and this is
\ntantamount  to\tthe  impugned  enactments  operating  beyond
\nJanuary\t 26,  1950.  In support of this\t submission  learned
\nCounsel\t invited our attention to a passage in the  judgment
\nof  this Court in Shanti Sarup v. Union of  India<\/a>(1).\tThat
\ncase  was concerned primarily with the constitutionality  of
\nan  order  dated  October 21, 1952  passed  by\tthe  Central
\nGovernment   under  s.\t3(4)  of  the\tEssential   Supplies
\n(Temporary  Powers) Act, 1946, by which the  petitioner-firm
\nwas  dispossessed  of a textile-mill which  they  owned\t and
\nmanaged.   There  had  been an earlier order  of  the  State
\nGovernment  dated  July 21, 1949, also which  was  similarly
\nimpugned.   B. K. Mukherjea, J., as he then was,  who  spoke
\nfor the
\n(1)  A.I.R. [1955] S.C. 624, 628.\n<\/p>\n
\t\t\t    323<\/span><\/p>\n
Court,\tafter  pointing out that the order  of\tthe  Central
\nGovernment  was\t not  supportable under\t the  terms  of\t the
\nenactment under which it was made and therefore had deprived
\nthe  petitioner\t of  his  property  under  Art.\t 31  of\t the
\nConstitution proceeded to add:\n<\/p>\n
\t      “But  even assuming that the deprivation\ttook
\n\t      place   earlier  and  at\ta  time\t  when\t the
\n\t      Constitution  had\t not come  into\t force,\t the
\n\t      order   effecting\t  the\tdeprivation    which
\n\t      continued from day to day must be held to have
\n\t      come into conflict with the fundamental rights
\n\t      of the petitioner as soon as the\tConstitution
\n\t      came  into force and become void on  and\tfrom
\n\t      that   date   under   Art.   13(1)   of\t the
\n\t      Constitution.”\n<\/p><\/blockquote>\n
 We  are unable to construe these observations as  affording
\nany assistance to the appellant.  The lease or licence which
\nthe  appellant had obtained by contract from the  landholder
\nwas  put  an  end  to, once and for all\t by  virtue  of\t the
\nprovisions  contained  in s. 22 of  the\t impugned  enactment
\nwhich made provision for compensation for the extinguishment
\nof   those  rights.   That  took  place\t long\tbefore\t the
\nConstitution,  in 1946.\t We have held that  the\t legislation
\nunder  which  the  appellant’s\trights\twere   extinguished,
\nsubject to his claim for compensation, was a valid law.\t  It
\nwould  therefore  follow that the appellant  could  have  no
\nrights which could survive the Constitution so as to  enable
\nhim  to invoke the protection of Part III thereof.  On\tthis
\npoint also we must hold against the appellant.
\nThe result is the appeal fails and is dismissed with costs.
\nAppeal dismissed.\n<\/p>\n
324<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Guru Datta Sharma vs State Of Bihar on 24 April, 1961 Equivalent citations: 1961 AIR 1684, 1962 SCR (2) 292 Author: N R Ayyangar Bench: Sinha, Bhuvneshwar P.(Cj), Sarkar, A.K., Gupta, K.C. Das, Ayyangar, N. Rajagopala, Mudholkar, J.R. PETITIONER: GURU DATTA SHARMA Vs. RESPONDENT: STATE OF BIHAR DATE OF JUDGMENT: 24\/04\/1961 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-127814","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nGuru Datta Sharma vs State Of Bihar on 24 April, 1961 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/guru-datta-sharma-vs-state-of-bihar-on-24-april-1961\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Guru Datta Sharma vs State Of Bihar on 24 April, 1961 - 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